IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EMILY CASTILLO, on behalf of herself and all others similarly situated, Plaintiff, v. UNILEVER UNITED STATES, INC., and CONOPCO, INC. d/b/a UNILEVER HOME & PERSONAL CARE USA, Defendants. CASE NO.: CLASS ACTION JURY TRIAL DEMANDED CLASS ACTION COMPLAINT Plaintiff, Emily Castillo (“Plaintiff”), on behalf of herself and all others similarly situated, brings this class action against Defendants, Unilever United States, Inc. (“Unilever”), and Conopco, Inc. d/b/a Unilever Home & Personal Care USA (“Conopco”) (collectively, “Unilever” or “Defendants”), and alleges on personal knowledge, investigation of her counsel, and on information and belief as follows: INTRODUCTION 1. This is a nationwide class action brought by Plaintiff on behalf of herself and other similarly situated consumers who purchased TRESemmé Keratin Hair Smoothing Shampoo and/or TRESemmé Keratin Smooth Color Shampoo (collectively, the “ Products” or “TRESemmé Products”) for personal or household use and not for resale (“Class” or “Class Members”). 2. Plaintiff purchased the Products because of Unilever’s uniform false representation that the Products would smooth her hair and coat it with Keratin, a protein found naturally in hair. Undisclosed by Defendants to Plaintiff and Class Members and therefore unknown to Plaintiff and Case: 1:20-cv-06786 Document #: 1 Filed: 11/16/20 Page 1 of 49 PageID #:1
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EMILY CASTILLO, on behalf of herself and all others similarly situated,
Plaintiff,
v. UNILEVER UNITED STATES, INC., and CONOPCO, INC. d/b/a UNILEVER HOME & PERSONAL CARE USA,
Defendants.
CASE NO.:
CLASS ACTION
JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT
Plaintiff, Emily Castillo (“Plaintiff”), on behalf of herself and all others similarly situated,
brings this class action against Defendants, Unilever United States, Inc. (“Unilever”), and Conopco,
Inc. d/b/a Unilever Home & Personal Care USA (“Conopco”) (collectively, “Unilever” or
“Defendants”), and alleges on personal knowledge, investigation of her counsel, and on information
and belief as follows:
INTRODUCTION
1. This is a nationwide class action brought by Plaintiff on behalf of herself and other
11. In fact, for approximately a decade or longer, Unilever has known that DMDM
hydantoin can cause or contribute to hair loss and scalp irritation when used as a preservative in
hair products, including keratin products. Specifically, DMDM hydantoin, and other ingredients,
were the subject of prior litigation initiated in 2012 against Unilever for hair loss and scalp
irritation related to its Suave Professionals Keratin Infusion products.3 In fact, the Suave Keratin
product was recalled in 2012 following complaints that the products caused hair loss and scalp
irritation, and were advertised as formaldehyde free, while containing DMDM hydantoin. The
$10.2 million settlement in Unilever’s Suave case was upheld by the Seventh Circuit Court of
Appeals in 2016.
12. Despite having public knowledge since at least 2012 that DMDM hydantoin, as a
formaldehyde donor, can cause or contribute to hair loss and scalp irritation, Unilever continued
to proudly include this ingredient as a preservative in its products, and even goes so far as to
represent to the public that DMDM hydantoin is safe for use in its hair care products.4
13. Upon information and belief, despite Unilever’s current acknowledgment that it
uses DMDM hydantoin as a preservative, it has recently reformulated the Products and has
removed DMDM hydantoin and replaced it with several other ingredients that serve as
preservatives.
14. Although Unilever has, or should have been aware, of the high potential for toxicity
or allergic reaction caused by one or more of the ingredients in the TRESemmé Products, it has
failed and continues to fail to warn consumers about possible reactions, including hair loss and
scalp irritation.
3 Reid, et al. v. Unilever United States, Inc., et al., C.A.N. 1:12-cv-06058 (N.D. Ill.). 4 https://www.unilever.com/brands/our-products-and-ingredients/your-ingredient-questions-answered/formaldehyde-donors.html (Last Accessed October 8, 2020).
men and women. It has its origins in hair salons, dating back over 60 years, and now has a range
of hair-styling products for use at home.”14
38. As part of its TRESemmé brand, Unilever sells the keratin Products at issue here.
B. DMDM Hydantoin.
39. Keratin is a type of protein found in hair and nails, and is added to hair products to
straighten and strengthen hair, as well as reduce frizz.
40. As protein is food for microbes, keratin hair products would spoil and have an
abbreviated shelf life without added preservatives to extend the life of the product.
41. There are numerous preservatives that are used in cosmetics and hair products,
including formaldehyde donors; many of which have been linked to the development of allergies,
dermatitis, hair loss, and even cancer.
42. Specifically, formaldehyde donors are preservatives that are “added to water-
containing cosmetics (which includes personal care products/toiletries) to prevent the growth of
micro-organisms that may enter during manufacture or during their usage.”15
43. Despite having intimate knowledge of the risks of using formaldehyde donor
preservatives, Unilever continues to use formaldehyde donors, DMDM hydantoin (also known as
DMDM-h) and sodium hydroxyl, in its products.16 Until recently, DMDM hydantoin was used as
a preservative in the Products at issue.
44. “DMDM hydantoin (dimethylodimethyl hydantoin) is a formaldehyde donor used
14 https://www.unilever.com/brands/?category=408114&brand=412548-410037 (Last Accessed October 21, 2020). 15 de Groot AC, White IR, Flyvholm MA, Lensen G, Coenraads PJ. Formaldehyde-releasers in cosmetics: relationship to formaldehyde contact allergy. Part 1. Characterization, frequency and relevance of sensitization, and frequency of use in cosmetics. Contact Dermatitis. 2010 Jan;62(1):2-17. doi: 10.1111/j.1600-0536.2009.01615.x. PMID: 20136875. 16 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-answered/Formaldehyde-donors.html (Last Accessed October 26, 2020).
as a preservative in cosmetic products at concentrations up to 1%.”17 In other words, it is a
formaldehyde-releasing preservative (“FRP”). used to lengthen the shelf life of personal care
products, including hair products.
45. “An important source of human skin contact with formaldehyde is the use of
cosmetics containing formaldehyde-releasers as preservatives.”18
46. In personal care products, such as shampoo, “formaldehyde can be added directly,
or more often, it can be released from preservatives such as… DMDM hydantoin.” Specifically,
the formaldehyde donor will “release small amounts of formaldehyde over time.”19
47. “In 1984, DMDM hydantoin ranked 9th in the list of the most frequently used
cosmetic preservatives in the USA.”20 By 1987, DMDM hydantoin was included in approximately
115 product formulas filed with the FDA, most frequently in shampoos.21
48. “DMDMH was the 21st most common allergen in the 2005-2006 NACDG standard
series. DMDMH is a preservative that contains 0.5% to 2% free formaldehyde and over 17%
combined formaldehyde.”22
49. For many decades, since the 1970’s, if not earlier, studies and patch tests were being
17 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C. DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland (Contact Dermatitis, 1988, 18:197-201). 18 de Groot AC, White IR, Flyvholm MA, Lensen G, Coenraads PJ. Formaldehyde-releasers in cosmetics: relationship to formaldehyde contact allergy. Part 1. Characterization, frequency and relevance of sensitization, and frequency of use in cosmetics. Contact Dermatitis. 2010 Jan;62(1):2-17. doi: 10.1111/j.1600-0536.2009.01615.x. PMID: 20136875. 19 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed October 21, 2020). 20 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C. DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland (Contact Dermatitis, 1988, 18:197-201). 21 Id. 22 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2958195/ (citing Rietschel RL, Fowler JF., Jr . Fisher's Contact Dermatitis. 5th ed. Philadelphia: Lippincott Williams & Wilkins; 2001).
performed to determine human reactivity to DMDM hydantoin,23 including specifically the
“relationship between contact allergy to formaldehyde,” including “test reactions to DMDM
hydantoin.”24
50. One study performed in 1987 specifically examined “whether the presence of
DMDM hydantoin in cosmetics may cause adverse effects in patients pre-sensitized to
formaldehyde.”25 The conclusion even more than twenty years ago was that “aqueous solutions of
DMDM hydantoin, in concentrations comparable to those used in cosmetic products, contain
enough free formaldehyde to cause dermatitis…,” and that despite earlier conclusions that DMDM
hydantoin is a safe cosmetic ingredient, “data suggest that an increase in the use of this preservative
may also increase the risk of cosmetic dermatitis in patients allergic to formaldehyde.”26 The
authors further suggest that cosmetic products with FRPs should have warnings that the products
“’contain formaldehyde’… whether present as free formaldehyde or bound by a donor.”27
51. Several more recent studies, including a 2015 study “determined that longer storage
time and higher temperature increase the amount of formaldehyde released from FRPs and could
ultimately lead to more severe health concerns.”28
52. In other words, “reactions that generated formaldehyde occur silently as the
23 Tudela E, MacPherson C, Maibach HI. Long-term trend in patch test reactions: a 32-year statistical overview (1970-2002), part II. Cutan Ocul Toxicol. 2008;27(3):187-202. doi: 10.1080/15569520802143436. PMID: 18988088. 24 “Patch test reactivity to DMDM hydantoin, Relationship to formaldehyde allergy.” By Anton C. DeGroot, Theodoor Van Joost, Jan D. Bos, Harrie L.M. Van Der Meeren, and J. Willem Weyland (Contact Dermatitis, 1988, 18:197-201). 25 Id. 26 Id. 27 Id. 28 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed October 21, 2020)(citing Lv, C., Hou, J., Xie, W., & Cheng, H. (2015). Investigation on formaldehyde release from preservatives in cosmetics. International journal of cosmetic science.).
products sit on shelves in stores or bathroom cabinets.”29
53. Formaldehyde is a known human carcinogen and is recognized as such by the
United States National Toxicology Program and the International Agency for Research on
Cancer.30
54. In 2009, prior to the sale of the Products, “a review of the literature on occupational
exposures and formaldehyde shows a link between formaldehyde and leukemia.”31
55. With specific regard to FRPs, like DMDM hydantoin, “the formaldehyde released
from FRPs has been linked to cancer, but there is little evidence that FRPs directly cause cancer.
However, a mixture of the FRP bromopol and amines, which form nitrosamines, has been found
to penetrate skin and cause cancer.”32
56. Further, a study in 2010 concluded that although “[i]t has been long accepted that
formaldehyde-releaser sensitization is attributable to released formaldehyde. However, clinical
studies show the existence of patients allergic to formaldehyde-releasers but not to formaldehyde
itself.”33 That same study found DMDM hydantoin to be “reactive per se.”
57. Consequently, it is unsurprising that DMDM hydantoin is considered by the U.S.
29 https://www.ewg.org/research/exposing-cosmetics-cover-up#formaldehyde (Last Accessed October 21, 2020). 30 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed October 21, 2020)(citing International Agency for Research on Cancer. “IARC classifies formaldehyde as carcinogenic to humans.” Press release. June 15, 2004. Accessed January 9, 2009.). 31 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed October 21, 2020)( Zhang et al 2009. Meta-analysis of formaldehyde and hematologic cancers in humans. Mutation Research 681: 150-168). 32 http://www.safecosmetics.org/get-the-facts/chemicals-of-concern/formaldehyde/ (Last Accessed October 21, 2020)(citing to http://www.cosmeticsinfo.org/nitrosamines. Accessed September 23, 2015). 33 Kireche M, Gimenez-Arnau E, Lepoittevin JP. Preservatives in cosmetics: reactivity of allergenic formaldehyde-releasers towards amino acids through breakdown products other than formaldehyde. Contact Dermatitis. 2010 Oct;63(4):192-202. doi: 10.1111/j.1600-0536.2010.01770.x. Epub 2010 Aug 20. PMID: 20731691.
Food & Drug Administration as one of the top allergens “that cause the most allergic reactions
from the use of cosmetic products.”34
58. Specifically, DMDM hydantoin can “trigger the immune system to release chemical
substances such as antibodies,” resulting in reactions such as itchiness, red rashes on the skin, or
more extreme reactions.35
59. Further, as a person becomes more exposed to an irritant over time, including
DMDM hydantoin, the likelihood and severity of the reaction increase. This is called irritant
contact dermatitis (“ICD”), which “can occur in any person if the amount and duration of irritant
exposure are sufficient to cause direct epidermal keratinocyte damage.”36
60. Likewise, the irritation of the scalp, including dermatitis, has been linked to hair
brittleness and hair loss. Specifically,
[A number of observations have found that premature hair loss may be caused by the poor scalp health associated with either dandruff and seborrheic dermatitis, or psoriasis, indicating that the effect on the preemergent hair fiber may alter the anchoring force of the fiber with the follicle, as evidenced by an increased proportion both of catagen and telogen, and of dysplastic anagen hairs (anagen hairs devoid of hair root sheaths) in the trichogram (hair pluck).37
61. In 2012, beauty product manufacturer Johnson & Johnson announced that it would
“remove a host of potentially harmful chemicals, like formaldehyde, from its line of consumer
products by the end of 2015.”38 [Emphasis Added].
34 https://www.fda.gov/cosmetics-ingredients/allergens-cosmetics (Last Accessed October 21, 2020). 35 https://www.fda.gov/cosmetics-ingredients/allergens-cosmetics (Last Accessed October 21, 2020). 36 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2958195/ 37 Trueb, Ralph M., Henry, Jim P., Davis, Mike G., and Schwartz, Jim R., Scalp Condition Impacts Hair Growth and Retention via Oxidative Stress, Int J Trichology. 2018 Nov-Dec; 10(6): 262–270, doi: 10.4103/ijt.ijt_57_18. 38 https://www.nytimes.com/2012/08/16/business/johnson-johnson-to-remove-formaldehyde-from-products.html
62. Like many other beauty manufacturers, Unilever has been using DMDM hydantoin
as a preservative in its products since at least 2011;39 however, unlike many manufacturers moving
away from toxic ingredients, Unilever continues to use this formaldehyde donor today, specifically
representing:
We use preservatives to keep home and personal care products in good condition: without them, they could be spoiled by bacteria, yeasts and molds. We choose our preservative ingredients carefully, making sure they are safe and effective for people who use our products.40
63. Notably, despite proudly continuing to use FRPs in its products, Unilever
specifically notes that they are not used in baby care products.41
64. As Unilever is aware, there is a litany of alternative preservatives that can be used
in shampoos and cosmetics that do not release known human carcinogens and are non-synthetic,
including:
a. Glyoxylic acid (or derivatives thereof);
b. Potassium sorbate and sorbic acid;
c. Citric acid and its salts;
d. Rosemary oil extract;
e. Neem oil extract;
f. Lavender oil;
g. Grapefruit seed extract;
h. Vinegars; and
i. Others.
39 Reid, et al. v. Unilever United States, Inc., et al., 1:12-cv-06058 (N.D.Ill.), Dkt. No. 60. 40 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-answered/index.html (Last Accessed October 21, 2020). 41 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-answered/Formaldehyde-donors.html (Last Accessed October 26, 2020).
65. In addition to these alternatives, Unilever also could have used lower levels of
DMDM hydantoin; however, the risk of development and exacerbation of sensitivity or allergic
reaction would still exist through repeated and prolonged use.
66. Upon information and belief, Unilever has recently begun to use alternative
preservatives in the Products; however, authorized retailers continue list DMDM hydantoin as an
ingredient on their websites.
C. Unilever’s Knowledge of DMDM Hydantoin Causing Hair Loss, Rashes, and Scalp Irritation.
67. On August 1, 2012, a lawsuit was filed against Unilever related to its Suave®
Keratin Infusion 30-day Treatment. In part, the lawsuit involved the allegations that,
despite the express representation that the Treatment contains no Formaldehyde, the Treatment does contain DMDM Hydantoin, a chemical that is known as a “Formaldehyde-releaser.” See http://www.safecosmetics.org/article.php?id=599. Formaldehyde releasers are sometimes used in cosmetics in place of formaldehyde and release small amounts of Formaldehyde over time. Formaldehyde is a known human carcinogen.42
68. Like the TRESemmé Products at issue here, the Suave product was causing “hair
loss upon proper application,”43 as well as scalp irritation and related conditions.
69. Like the TRESemmé Products at issue here, Unilever failed to warn consumers that
use of the Suave products could cause the scalp reactions and hair loss being reported by
consumers.
70. Accordingly, notwithstanding Unilever has been in the business of manufacturing
cosmetics and hair products for nearly 100 years and the decades long studies on reactivity to
DMDM hydantoin, at a minimum Unilever was on notice since the Suave lawsuit filed in 2012 that
its products containing DMDM hydantoin were cause scalp irritation and hair loss.
42 Reid, et al. v. Unilever United States, Inc., et al., 1:12-cv-06058 (N.D.Ill.), Dkt. No. 1, ¶ 23. 43 Id. at ¶ 26.
D. For Years, Consumers Have Voiced Their Complaints About the Products.
71. Since at least 2013, Unilever became aware through consumer complaints that its
TRESemmé Keratin Products were causing scalp irritation and hair loss.
72. A sample of complaints posted on Amazon.com detail scalp reactivity and hair loss
follows:
Star rating unknown. BEWARE! o Reviewed in the United States on July 28, 2013 o “I tried this shampoo for two weeks. I wash my hair about three times a
week. In that short amount of time, I lost ALOT of hair. I have thick, wavy and used to have TONS of hair. After using this product, I noticed a huge difference in the amount of hair I was losing daily. It is now very dry, brittle and my scalp started to itch. I was using Loreal sulfate free smoothing shampoo and conditioner before this. I wanted to try something different as I flat iron my hair quite frequently. Boy do I regret it! All I can say is BEWARE. It does smoothe your hair by thinning it out! Pay close attention to the amount of hair you are losing in the shower and throughout the day! It DOES matter!”
1.0 out of 5 stars Hair shedding
o Reviewed in the United States on November 23, 2013 o “This product seemed find [sic] at first. I'm trying to grow my hair out
and I thought that this would help keep it healthy and was doing everything I was told to do but still my hair was coming out in chunks. I changed shampoos and as soon as I did my hair wasn't Coming out in chunks. I ran out of shampoo so I was forced to go back to this one and My hair began to shed horridly again. I threw this over my balcony.”
1.0 out of 5 stars garbage!!!!
o Reviewed in the United States on January 14, 2015 o “I have kinky coily hair and they were giving this shampoo and its
conditioner out at my job. And I am appalled that they would even think this stuff was good enough to give out. My hair was nice and soft before this went in. It completely stripped my hair of its natural oils... My hair started falling out immediately. I had to pile in the shampoo to undo the mess it did to my hair. WOW!!!”
1.0 out of 5 stars Causes Signficant Hair Loss - Do not buy! o Reviewed in the United States on July 10, 2015 o “Absolutely horrible shampoo! At first I got it because the name of
it intrigued me. I have thin, dry, wavy hair and was looking for something that would help control my hair's extremely frizzy texture. At first I loved this shampoo and the scent is really nice too.
However, within a couple weeks of use, I noticed chunks of my hair falling out. I did some research on this shampoo and noticed others who said similar things after trying it. I'm so disappointed because this is thinning out my already thin hair. Seriously this causes a lot of hair loss, do not buy!”
1.0 out of 5 stars I dont recommend this to anyone
o Reviewed in the United States on July 20, 2016 o “I dont recommend this to anyone. My hair started falling down
after using this shampoo. waste of money. I am going to throw it to the dustbin. Please dont buy if you dont want your hair to be fallen.”
2.0 out of 5 stars Causes problems
o Reviewed in the United States on August 23, 2018 o “Horrible products.The shampoo for color treated hair makes my
hair pull out and my scalp itches.”
73. Similar complaints have been reported through www.BJs.com for at least six years.
A sampling of these follows:
causing sores on my scalp Submitted 5 years ago By tarah o I love the smell it's amazing but it's been causing sores on my scalp
and my hair has been falling out. I'm really concerned. It makes my scalp feel weak and thinning.
Worst shampoo I've ever used Submitted 5 years ago By ReneeO o I have used alot of different shampoos from drugstore to high end
and this is the absolute worst! It made me lose hair and my scalp dry out and itch like crazy, and its been two weeks and my scalp is still recovering. My scalp is so itchy that I have been itching it my sleep. I have thick, coarse, healthy hair and nothing has ever made my hair and scalp feel worse. My stylist always comments that my hair is healthy until I used this.
Terrible product Submitted 5 years ago By Mlynn5
o I've used TRESemmé in the past. But this product was terrible, my hair started breaking off and falling out after two weeks of using it! My hair is now thin! I will never use TRESemmé products again!
Worst product I've ever used! Submitted 4 years ago By Unhappycurlz
o I decided to try out this shampoo and conditioner thinking it would be good for my curly hair. Boy was I wrong! It didn't make my curls look any different except for now my hair is a lot thinner! Hair consistently falls out In the shower. I know it's from this product
because it started happening once I switched to it.
74. Like Amazon and BJ’s, people across the world began to issue similar complaints
for at least three years and as recently as four months ago on PRODUCTREVIEW.COM:44
“Worst i've used so far” – posted 3 years ago o I have to usually have to switch shampoos every three months or so i thought
TRESemmé would be the exception but i was wrong not only did it make my scalp itchy as hell it also has been making my hair fall out so now on the sides it looks like it's thining never buying this product again!
“Awful!!!!” – posted 3 years ago o I used these products and they made me lose more hair and my scalp was so
itchy ( wake me up in the middle of the night itchy) I thought I had head lice. So I figured I was allergic and stopped using it.... my daughter started to use it so we didn't waste it. She had the same reaction as well as her friends that use it. We are throwing it away right now
“My hair is falling out!” – posted 3 years ago o I've been using this product for roughly 3 months. I couldn't figure out why I
started losing so much hair. Well I finally came to realize it's this. Thanks TRESemmé!
“OMFG TEARS!” - posted 2 years ago from Shomari in Kansas City, MO o This product caused a lot of hair loss for me. I've never had anything like this
happen to me, I literally have a big bald spot in the middle of my head! And the shedding will not stop, I've only used this product once, about four days ago. This is the worst product I have ever used in my LIFE!!!
“Made my hair fall out within a week!!” – posted 2 years ago o Bought this because their classic TRESemmé (black bottle) has always been
good. Well, after a week my hair was literally falling out...CLUMPS in my hand and clogged my shower 3 times in one shower. Also made my hair staticky and dry feeling. I’m not sure I’ll ever use their product again!!
“Terrible..Itchy scalp! Need to sue this shampoo maker!” - posted 4 months ago
o Using this shampoo since last 3 months and I realized I was feeling itchy scalp. However hair is smoother. Trust me it literally made my scalp dry and itchy and sometimes I literally couldn’t sleep. It took me some time and I searched over web to find if others are feeling the same and it’s true that many others feeling the same. Worst product!!
83. Contrary to the Food, Drug and Cosmetic Act regulations, the Products also failed
to provide adequate directions for safe use, although Defendants knew or should have known the
Products would be unsafe if used incorrectly. In fact, Unilever’s website affirmatively represents
that it complies with all applicable labeling laws. See Unilever’s Code of Business Principles and
Code Policies, at 6.46
84. In response to the damage customers have suffered after using the Products,
consumers complained as described supra.
85. There are hundreds of posts highlighting the “horror stories” of women who used
the Products. These stories are strikingly similar to Plaintiff’s experiences. These consumers
describe how they were misled by Unilever’s representations about the Products, expecting salon-
46 See https://www.unilever.com/Images/code-of-business-principles-and-code-policies_tcm244-409220_en.pdf. (noting “Unilever companies and employees are required to comply with the laws and regulations of the countries in which we operate.”) (last accessed on November 16, 2020).
that there was a substantial risk of scalp irritation and hair loss associated with use of the Products.
Defendants instead continued to claim that the Products’ ingredients, including DMDM hydantoin,
were safe, while concealing all the adverse reports filed by consumers.
97. The labels on the back of each Product perpetuate the false, deceptive and
misleading representations and claims. Specifically, the back labels of the Products represent
“Our Keratin Smooth system, with MARULA OIL, gently cleanses and nourishes hair.”
(Emphasis Added).
98. However, despite the representation that the Products “gently” cleanse, they contain
one or more ingredients, including DMDM hydantoin, that cause scalp irritation and hair loss.
99. Defendants further represent that DMDM hydantoin is safe for use in its products;
however, acknowledge that these FRPs are not used in baby care products.47
100. Defendants reinforce the false and deceptive claims that the Products “nourish” the
hair and leave it in good condition through the websites of various authorized retailers:
Keratin Smooth Color Shampoo
Our revamped TRESemmé Keratin Smooth system now features a color-treated option with luxurious Moroccan oil and delivers not one but five smoothing benefits so you can forget the frizz and indulge in gorgeously silky hair for up to 72 hours.* Product Details
Silky smoothness with bountiful body? Who says you can’t have it all? Our unique TRESemmé Keratin Smooth Color System, with Keratin and Moroccan Argan Oil, helps to control frizz while keeping your style effortlessly smooth. Not to mention, this double-duty system helps protect your color-treated hair, leaving it gorgeously sleek and vibrant.
Start your routine with the TRESemmé Keratin Smooth Color Shampoo, formulated with rich Moroccan Argan oil and Keratin. This low-sulfate
47 https://www.unilever.com/brands/Our-products-and-ingredients/Your-ingredient-questions-answered/Formaldehyde-donors.html (Last Accessed October 27, 2020).
shampoo cleanses gently your colored hair, smoothing frizz from root to tip, while sealing in shine to keep your colored hair vibrant.
How To Use
Apply to wet hair, gently massage the scalp and roots with fingertips to work into a lather.
Lightly squeeze the shampoo from roots to ends and rinse thoroughly.
Finish with TRESemmé Keratin Smooth Color Conditioner and style with your favorite TRESemmé products.
For protections from heat styling tools, us TRESemmé Keratine Smooth Heat Protection Spray before you style.
How It Works
Keratin Color Shampoo is formulated to leave your hair gorgeously sleek and control frizz.
https://www.tresemme.com/us/en/products/shampoo/keratin-smooth-color-shampoo.html (emphasis added) (last visited October 28, 2020).
Keratin Smooth Shampoo
Our redesigned formula with luxurious Marula oil delivers not one, but five smoothing benefits so you can forget the frizz and indulge in gorgeously silky hair for up to 72 hours.* *TRESemmé Keratin Smooth Shampoo and Conditioner system vs. non-conditioning. Product Details
Don’t let unruly frizz ruin your style. When it comes to control, you should never have to compromise smooth for limp, poker straight hair.
Specially formulated to fight frizz, detangle knots, boost shine, add silky softness and tame those pesky flyaways, TRESemmé Keratin Smooth, with Keratin and lush Marula oil from Africa, gives you five smoothing benefits in one system, for hair that’s silky smooth but still full of natural movement.
How To Use
Apply to wet hair, gently massage the scalp and roots with fingertips to work into a lather.
Lightly squeeze the shampoo from roots to ends and rinse thoroughly.
contained in the Products, at what levels, and are safe or unsafe.
111. Defendants knew or should have known, but failed to disclose, that the Products
contain one or more unsafe ingredients, including DMDM hydantoin, and do not safely smooth,
nourish, cleanse, and/or repair hair, as labeled and/or marketed by Defendants.
112. Plaintiff and putative Class Members were, in fact, misled by Defendants’ labeling,
representations and marketing of the Products.
113. The unsafe ingredient(s) and the inability of the Products to safely smooth, nourish,
cleanse, and/or repair hair, leave no reason to purchase these Products at all, since other proven
and safer comparably priced products exist.
114. The Products are defined as “cosmetics” under 21 U.S.C.S. § 321(i) of the Federal
Food Drug & Cosmetic Act (“FDCA”).
115. Defendants’ deceptive statements violate 21 U.S.C.S. § 362(a), which deems a
cosmetic product misbranded when the label contains a statement that is “false or misleading in
any particular.”
116. The FDA promulgated regulations for compliance with the FDCA at 21 C.F.R. §§
701 et seq. (for cosmetics).
117. The introduction of misbranded cosmetics into interstate commerce is prohibited
under the FDCA and all parallel state statutes cited in this Complaint.
118. Also, the Illinois Consumer Fraud and Deceptive Business Practices Act protects
Defendants’ consumers, and provides:
§ 2. Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.
815 ILCS 505/2.
119. Plaintiff and putative Class Members would not have purchased the Products had
they known the Products contained one or more unsafe ingredients and are incapable of safely
130. Plaintiff provided pre-suit notice to Defendants of her warranty claims, and
Defendants had actual notice of the alleged defect and harm caused by the Products.
ESTOPPEL FROM PLEADING AND TOLLING OF APPLICABLE STATUTES OF LIMITATIONS
131. Plaintiff and members of the Classes are within the applicable statute of limitation
for the claims presented here. Defendants have knowledge and information detailing the Products’
propensity to cause or contribute to hair loss and/or scalp irritation, but failed to disclose this
information to consumers, and Plaintiff and members of the Classes therefore could not reasonably
have known that the Products would cause or contribute to hair loss and scalp irritation. Rather,
consumers relied upon Defendants’ misrepresentations and omissions, including the statements on
the Products’ labeling as set forth above.
132. Once Plaintiff incurred damages, she promptly acted to preserve her rights, filing
this action. Defendants are estopped from asserting any statute of limitation defense that might
otherwise be applicable to the claims asserted herein.
CLASS ACTION ALLEGATIONS
133. Plaintiff brings this action on behalf of herself and the following Classes pursuant
to Federal Rule of Civil Procedure 23(a), (b)(2) and/or (b)(3). Specifically, the Classes are defined
as:
National Class: All persons in the United States who purchased the Products
Consumer Fraud Multi-State Class: All persons in the States of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington who purchased the Products.48
48 The States in the Consumer Fraud Multi-State Class are limited to those States with similar consumer fraud laws under the facts of this case: California (Cal. Bus. & Prof. Code §17200, et
Illinois Class: All persons in the State of Illinois who purchased the Products.
134. Excluded from the Classes are (a) any person who purchased the Products for resale
and not for personal or household use, (b) any person who signed a release of any Defendant in
exchange for consideration, (c) any officers, directors or employees, or immediate family members
of the officers, directors or employees, of any Defendant or any entity in which a Defendant has a
controlling interest, (d) any legal counsel or employee of legal counsel for any Defendant, and (e)
the presiding Judge in this lawsuit, as well as the Judge’s staff and their immediate family members.
135. Plaintiff reserves the right to amend the definition of the Classes if discovery or
further investigation reveals that the Classes should be expanded or otherwise modified.
136. Numerosity – Federal Rule of Civil Procedure 23(a)(1). Class Members are so
numerous and geographically dispersed that joinder of all Class Members is impracticable. While
the exact number of Class Members remains unknown at this time, upon information and belief,
there are thousands, if not hundreds of thousands, of putative Class Members. Moreover, the
number of members of the Classes may be ascertained from Defendants’ books and records. Class
Members may be notified of the pendency of this action by mail and/or electronic mail, which can
be supplemented if deemed necessary or appropriate by the Court with published notice.
137. Predominance of Common Questions of Law and Fact – Federal Rule of Civil
Procedure 23(a)(2) and 23(b)(3). Common questions of law and fact exist as to all Class Members
and predominate over any questions affecting only individual Class Members. These common legal
and factual questions include, but are limited to, the following:
seq.); Florida (Fla. Stat. §501.201, et seq.); Illinois (815 Ill. Comp. Stat. 505/1, et seq.); Massachusetts (Mass. Gen. Laws Ch. 93A, et seq.); Michigan (Mich. Comp. Laws §445.901, et seq.); Minnesota (Minn. Stat. §325F.67, et seq.); Missouri (Mo. Rev. Stat. §407.010, et seq.); New Jersey (N.J. Stat. §56:8-1, et seq.); New York (N.Y. Gen. Bus. Law §349, et seq.); and Washington (Wash. Rev. Code §19.86.010, et seq.).
substantially impeding their ability to protect their interests, while establishing incompatible
standards of conduct for Defendants. Accordingly, the proposed Classes satisfy the requirements
of Fed. R. Civ. P. 23(b)(1).
142. Declaratory and Injunctive Relief – Federal Rule of Civil Procedure 23(b)(2).
Defendants have acted or refused to act on grounds generally applicable to Plaintiff and all
Members of the Classes, thereby making appropriate final injunctive relief and declaratory relief,
as described below, with respect to the members of the Classes as a whole.
143. Superiority – Federal Rule of Civil Procedure 23(b)(3). A class action is superior
to any other available methods for the fair and efficient adjudication of the present controversy for
at least the following reasons:
a. The damages suffered by each individual members of the putative Classes do not justify the burden and expense of individual prosecution of the complex and extensive litigation necessitated by Defendants’ conduct;
b. Even if individual members of the Classes had the resources to pursue individual litigation, it would be unduly burdensome to the courts in which the individual litigation would proceed;
c. The claims presented in this case predominate over any questions of law or fact
affecting individual members of the Classes;
d. Individual joinder of all members of the Classes is impracticable;
e. Absent a Class, Plaintiff and members of the putative Classes will continue to suffer harm as a result of Defendants’ unlawful conduct; and
f. This action presents no difficulty that would impede its management by the
Court as a class action, which is the best available means by which Plaintiff and members of the putative Classes can seek redress for the harm caused by Defendants.
144. In the alternative, the Classes may be certified for the following reasons:
a. The prosecution of separate actions by individual members of the Classes would create a risk of inconsistent or varying adjudication with respect to individual members of the Classes, which would establish incompatible standards of conduct for Defendants;
b. Adjudications of claims of the individual members of the Classes against
Defendants would, as a practical matter, be dispositive of the interests of other members of the putative Classes who are not parties to the adjudication and may substantially impair or impede the ability of other putative Class Members to protect their interests; and
c. Defendants have acted or refused to act on grounds generally applicable to the
members of the putative Classes, thereby making appropriate final and injunctive relief with respect to the putative Classes as a whole.
CLAIMS FOR RELIEF
COUNT I
Violation Of State Consumer Fraud Acts (On Behalf Of The Multi-State Class)
145. Plaintiff re-alleges and incorporates by reference the allegations contained in
Paragraphs 1 through 144, as though set forth fully herein.
146. The Consumer Fraud Acts of the States in the Multi-State Class49 prohibit the use
of unfair or deceptive business practices in the conduct of trade or commerce.
147. Unilever intended that Plaintiff and each of the other members of the Multi-State
Class would rely upon its deceptive conduct, and a reasonable person would in fact be misled by
this deceptive conduct.
148. Had the truth been known, Plaintiff and other Multi-State Class Members would
not have purchased Unilever’s Products.
149. As a result of Unilever’s use or employment of unfair or deceptive acts or business
practices, Plaintiff and each of the other members of the Multi-State Class have sustained damages
in an amount to be proven at trial.
49 California (Cal. Bus. & Prof. Code §17200, et seq.); Florida (Fla. Stat. §501.201, et seq.); Illinois (815 Ill. Comp. Stat. 505/1, et seq.); Massachusetts (Mass. Gen. Laws Ch. 93A, et seq.); Michigan (Mich. Comp. Laws §445.901, et seq.); Minnesota (Minn. Stat. §325F.67, et seq.); Missouri (Mo. Rev. Stat. §407.010, et seq.); New Jersey (N.J. Stat. §56:8-1, et seq.); New York (N.Y. Gen. Bus. Law §349, et seq.); and Washington (Wash. Rev. Code §19.86.010, et seq.).
210. Plaintiff and putative Class Members are entitled to recover from Defendants all
amounts wrongfully collected and improperly retained by Defendants.
211. When required, Plaintiff and Class Members are in privity with Defendants because
Defendants’ sale of the Products was either direct or through authorized sellers. Purchase through
authorized sellers is sufficient to create such privity because such authorized sellers are
Defendants’ agents for the purpose of the sale of the Products.
212. As a direct and proximate result of Defendants’ wrongful conduct and unjust
enrichment, Plaintiff and putative Class Members are entitled to restitution of, disgorgement of,
and/or imposition of a constructive trust upon all profits, benefits, and other compensation obtained
by Defendants for their inequitable and unlawful conduct.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated
members of the Classes, pray for relief and judgment, including entry of an order:
A. Declaring that this action is properly maintained as a class action, certifying the proposed Class(es), appointing Plaintiff as Class Representative and appointing Plaintiff’s counsel as Class Counsel;
B. Directing that Defendants bear the costs of any notice sent to the Class(es);
C. Declaring that Defendants must disgorge, for the benefit of the Class(es), all or part of
the ill-gotten profits they received from the sale of the Products, or order Defendants to make full restitution to Plaintiff and the members of the Class(es);
D. Awarding restitution and other appropriate equitable relief;
E. Granting an injunction against Unilever to enjoin it from conducting its business through the
unlawful, unfair and fraudulent acts or practices set forth herein;
F. Granting an Order requiring Unilever to fully and appropriately recall the Products, to remove the claims on its website and elsewhere that the Products are safe to use, and to fully and properly disclose the safety risks associated with the Products to anyone who may still be at risk of buying and using the Products;
G. Awarding Plaintiff and members of the Class(es) statutory damages, as provided by the
applicable state consumer protection statutes invoked above;
H. Enjoining Defendants from continuing to engage in the unlawful and unfair business acts and practices as alleged herein;
I. Awarding attorneys’ fees and litigation costs to Plaintiff and members of the Class(es);
J. Awarding civil penalties, prejudgment interest and punitive damages as permitted by law;
K. Ordering a jury trial and damages according to proof; and
L. Ordering such other and further relief as the Court deems just and proper.
JURY DEMAND
Plaintiff demands a trial by jury of all claims in this Complaint so triable.
Dated: November 16, 2020 Respectfully submitted,
/s/ Jonathan Shub
Jonathan Shub Kevin Laukaitis SHUB LAW FIRM LLC 134 Kings Highway E, 2nd Floor Haddonfield, NJ 08033 T: 856-772-7200 F: 856-210-9088 [email protected][email protected]
Andrew J. Sciolla* SCIOLLA LAW FIRM LLC Land Title Building 100 S. Broad Street, Suite 1910 Philadelphia, PA 19110 T: 267-328-5245 F: 215-972-1545 [email protected]
Daniel K. Bryson* Harper T. Segui* Caroline Ramsey Taylor* WHITFIELD BRYSON, LLP 900 W. Morgan Street Raleigh, NC 27603 T: 919-600-5000 [email protected]